Warrick Unit #4 COAL SUPPLY AGREEMENT
Xxxxxxx
Unit #4
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THIS COAL SUPPLY
AGREEMENT (“Agreement”) is entered into effective the 1st
day of January, 2009, between VECTREN FUELS, INC., an
Indiana corporation (“Seller”), whose principal business address is Xxx
Xxxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxx 00000, and SOUTHERN INDIANA GAS AND
ELECTRIC COMPANY d/b/a VECTREN POWER SUPPLY,
INC. (“Buyer”), whose
principal business address is Xxx Xxxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxx
00000.
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WHEREAS, Buyer desires
to secure to the extent of the quantities and for the period hereinafter
stated, a supply of bituminous coal of the quality hereinafter set forth,
for use in its Xxxxxxx Unit 4 generating plant (“Plant”);
and
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WHEREAS, Seller
represents that it is experienced in the commercial production and
preparation of coal and that it owns, has leased, or controls the
hereinafter mentioned reserves of bituminous coal which are assigned to
its Cypress Creek, Prosperity and Oaktown Mines (“Seller’s Mines” or
“Mines”); and
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WHEREAS, Seller desires
to sell coal to Buyer and Buyer desires to buy coal from Seller, upon the
terms and conditions hereinafter set
forth.
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NOW THEREFORE, in
consideration of the mutual covenants contained herein, Seller agrees to
sell and deliver coal to Buyer and Buyer agrees to purchase and accept
delivery of coal from Seller, pursuant to the terms and conditions set
forth as follows:
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ARTICLE
I
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1.1
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Sale
and Purchase; Source of Coal. Seller agrees to
sell and Buyer agrees to purchase, the quantity and quality of coal
specified herein, on the terms and subject to the conditions hereinafter
set forth. The source of coal to be supplied under this
Agreement shall be the Seller’s Mines. Alternate Source Coal,
as defined hereinafter, may be supplied by Seller, subject to the
provisions of Section 6.5 of this
Agreement.
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1.2
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Dedication
of Reserves. Seller represents that it owns or has
leased, and will dedicate and set aside for this Agreement, such quality
and quantity of coal reserves at Seller’s Mines, as are required for full
performance of Seller’s obligations hereunder. Seller
represents and warrants that it has the legal right to mine and sell such
coal reserves. Seller will not sell, nor contract to sell to
others, coal from said reserves in such quantity as to jeopardize Seller’s
ability to deliver the total quantity of coal Seller is obligated to
deliver to Buyer under this
Agreement.
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1.3
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Annual
Delivery Plan. Seller has dedicated and set aside for
this Agreement such quality and quantity of coal reserves at Seller’s
Mines as are required for full performance of Seller’s obligations
hereunder. Seller warrants that such reserves are assigned to
Seller’s Cypress Creek, Prosperity and Oaktown Mines. Because
the availability of coal may vary from each of Seller’s Mines during
certain periods, Buyer and Seller hereby agree, on an annual basis, to
meet to discuss, coordinate, and agree to a plan (“Annual Delivery Plan”)
for the delivery of coal to Buyer’s Plant. The Annual Delivery
Plan shall specify the source and volumes from each source to be delivered
to the Plant under this Agreement. Transportation charges for
delivering coal to Buyer’s Plant from either of Seller’s Mines shall be
determined in Accordance with Section 4.1 and Section 6.5. When
developing the Annual Delivery Plan, every attempt shall be made to
deliver coal to Buyer in accordance with Buyer’s
instructions. Coal delivered according to the Annual Delivery
Plan shall also meet the coal quality specifications outlined in Exhibit
A.
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1.4
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Title
and Risk of Loss. The sale of coal under this Agreement
shall occur, and ownership and risk of loss shall pass from Seller to
Buyer, upon delivery of the coal at the
Plant.
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1.5 |
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Opening
of Oaktown Mine. Buyer acknowledges that Seller’s Oaktown
Mine is still in the construction/development phase, that the Oaktown Mine
is not forecast to commence production until May 2009, or be operating at
full capacity (250,000 tons/mo.) until the first quarter of 2010, that
Seller’s ability to deliver coal from Seller’s Oaktown Mine in the full
quantities contemplated under the 2009 Annual Delivery Plan is
contingent upon Seller’s Oaktown Mine phasing in 2009 monthly production,
commencing May, 2009, at the following monthly rates (in
000’s):
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May 63
June 83
July 109
August 145
September 145
October 146
November 219
December
219
Seller’s ability to deliver coal at the
contemplated levels in 2010 and thereafter is contingent upon the Oaktown Mine
operating at its projected full capacity from and after January, 2010.
Seller shall use commercially reasonable efforts to complete the
construction/development of the Oaktown Mine, so that the same is operational to
facilitate mining and delivery of coal as contemplated by the 2009 Annual
Delivery Plan. Nonetheless, Buyer agrees that Seller shall have no
liability under this Agreement, notwithstanding any provision to the contrary,
for failure to deliver the full quantities of coal from Seller’s Oaktown Mine as
contemplated by the 2009 Annual Delivery Plan to the extent applicable to delays
in the opening or full operation of, or failure to open, the Oaktown Mine so
long as Seller has used commercially reasonable efforts to accomplish the
same. In years subsequent to 2009, in the event Seller is unable to
deliver the full quantities of coal as contemplated in the then effective Annual
Delivery Plan, or if Seller is unable to provide an acceptable Annual
Delivery Plan meeting the volumes contemplated hereunder, due to delays in
the opening or full operation of, or failure to open, Seller’s Oaktown Mine,
the termination provisions of Section 9.2, Force Majeure, shall apply,
whether or not such failure to open or operate at full production would
otherwise constitute a Force Majeure.
Commercially reasonable efforts mean
efforts equivalent to those that would be exercised by an owner/operator of a
mine/mining facility of similar size and complexity to the Oaktown Mine acting
in good faith and in a commercially reasonable manner.
ARTICLE
II
ARTICLE
III
ARTICLE
IV
Year $/Ton $/MMBTU
2009 $59.50 $2.7045
2010 $61.88 $2.8127
2011 $64.36 $2.9255
2012 $66.93 $3.0423
In
addition to the F.O.B. mine prices above, there will also be per ton
transportation charges to deliver the coal to the Plant. The
transportation charges will include the base transportation rates plus a fuel
surcharge which shall be adjusted on a monthly basis to adjust for fluctuations
in the price of diesel fuel. The transportation adjustment charge
made by Seller shall be identical to the transportation adjustment charge made
by Seller’s contract carrier under the contract carrier’s Coal Hauling Contract
with Seller.
The prices shall be adjusted (upward or
downward, as the case may be) for changes in Seller’s cost which are prudently
incurred and paid in connection with Mine production, sale, processing,
reclamation and loading of the coal due to a change or changes after January 1,
2009 in local, state and federal laws or regulations, or verifiable changes by a
government body (having competent jurisdiction over the subject matter) in the
interpretation of existing laws or regulations (but excluding laws relating to
income taxes, real and personal property taxes; provided, however, any other
taxes, including, but not limited to severance, carbon or labor related taxes,
such as unemployment, social security, black lung and worker’s compensation
shall be included). Seller shall exercise all reasonable efforts to
minimize its costs attributable to such changes in laws or
regulations. Any claim by Seller for an increase in price due to a
change in costs caused by a change in laws or regulations (as permitted above),
shall be net of any benefits, credits, deductions, depletion allowances, or
other reductions in costs allowed or allowable which become available to Seller
in connection with the Mine production, sale, processing, reclamation and
loading of coal due to a change or changes after January 1, 2009 in local,
state, and federal laws or regulations, or verifiable changes by the government
body (having competent jurisdiction over the subject matter). Any
such claim shall be made within 90 days of when such change in costs occurs,
shall be fully supported by Seller’s accounting records and other documents
establishing the basis for the change as soon as reasonably practicable, and is
subject to Buyer’s audit.
Adjustment to the Contract Price shall
be made for changes in Seller’s costs per Ton of Coal sold hereunder caused
directly by increased or decreased Governmental Impositions adopted,
promulgated, ordered, released, approved, or enacted after the Effective
Date. Seller shall give prompt notice to Buyer of the amount of any
such increased or decreased cost per Ton of Coal sold hereunder incurred by
reason of a change of Governmental Imposition along with detailed documentation
of such amount which shall be supported by Seller’s accounting records and other
documents establishing the basis for the change which are subject to Buyer’s
audit.
In the event of an increase in cost,
Seller in such notice further shall indicate the increase in Contract Price that
Seller will require which increase may not exceed the increase in Seller’s cost
caused by Governmental Impositions enacted or otherwise effective after the
Effective Date. Within thirty (30) Days of receipt of such notice of
increase in cost, Buyer will give notice (“Buyer’s Notice”) that Buyer at its
option will either pay the requested increased Contract Price or will terminate
this Agreement as of the date that is the effective date of such change in
Government Regulation or thirty (30) days from Buyer’s Notice, whichever is
later. Upon receipt of a Buyer’s Notice electing termination, Seller
shall have the option of rescinding its increase in the Contract Price per the
applicable change in Government Impositions, in which case this Agreement shall
not terminate but shall continue in full force and effect.
In the
event of a decrease in cost, the Contract Price will be decreased by an amount
equal to the decrease in Seller’s cost caused by Governmental Impositions
enacted after the Effective Date. If there are both increases and
decreases in cost, such increases and decreases shall be netted one against the
other.
Notwithstanding
any other provision of this Section 4.2, there shall be no change in the
Contract Price as a result of any noncompliance with any Government Impositions,
or any civil or criminal fines or penalties imposed for failure to comply with
any Governmental Imposition currently existing or hereafter
enacted. Additionally, adjustments to the Contract Price shall be
made hereunder only if the adjustment is allocated evenly to all coal that is
produced from Seller’s Mines, so that Buyer is allocated only its proportionate
share of such cost.
Any
adjustment to the Contract Price under this Section 4.2 will be effective as of the date the change
in Governmental Imposition is effective.
ARTICLE
V
Seller
recognizes that Buyer must comply with applicable state and federal
environmental regulations, including sulfur and particulate standards, and that
Buyer is required to receive a substantially uniform coal quality on a
day-to-day basis in order to comply with such regulations. Seller
agrees to carefully utilize proper mining techniques and procedures, and to
properly maintain and operate the preparation plant at the Mine, so as to
minimize day-to-day deviations in quality.
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A.
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All
sampling and analysis shall meet ASTM Standards. Seller shall retain
sample splits at Seller’s Mine for a period of ninety (90)
days. Upon Buyer’s request, the retained sample split shall be
sent to an independent laboratory for analysis and the results of such
analysis shall govern as to the quality of the coal shipment as to which
such sample pertains.
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B.
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Sampling
and analysis shall be performed on not greater than 2,000 ton
batches.
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C.
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If
it is determined that samples have been obtained incorrectly, Seller and
Buyer shall attempt to determine the effect, if any, on quality
determinations as the same may apply to the price for coal paid by Buyer
with respect to samples previously used by Buyer and Seller in their
analyses. If required, a reasonable adjustment shall be made in
amounts invoiced and payments made to compensate for any differences in
the gross calorific value of coal tested versus that of the coal which
should have been tested. If it is determined that sample
analyses are in error, whether due to improper preparation of samples to
be analyzed, faulty analytical equipment, or faulty laboratory methods, an
appropriate adjustment shall be made in amounts invoiced and payments made
to correct for errors in gross calorific values determined by the sample
analyses. However, no adjustment hereunder shall be retroactive
for a period in excess of ninety (90) days prior to either (i) the date
that either party first questioned in writing the correctness of the
sampling procedures or the accuracy of the sample analyses, or (ii) the
date that the inaccuracy was first determined, whichever was the earlier
date.
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D.
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Coal
not complying with the quality specifications set forth herein will not be
accepted by Buyer unless authorized prior to shipment. At the
option of the Buyer, acceptance of non-conforming coal may be conditioned
upon reductions in price which shall be agreed upon in writing prior to
delivery of any such non-conforming
coal.
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ARTICLE
VI
Seller shall
use commercially reasonable efforts, as defined in Section 1.5, to comply with
the Annual Delivery Plan. Seller shall provide Purchaser with
documentation supporting its inability to comply if such inability exceeds
15% of planned deliveries from a particular source Mine designated in
the Annual Delivery Plan and the deviation from the Annual Delivery Plan
results in increased transportation costs to Buyer (i.e. more deliveries
from Oaktown Mine or at the Oaktown Mine rate in substitution for planned
Prosperity Mine deliveries). Without limiting the generality of the
foregoing, except for pro-rata reductions applicable to all buyers in the event
of a Force Majeure affecting the Prosperity Mine, Seller shall not be permitted
to deviate from the Annual Delivery Plan in order to ship to
another buyer all or any portion of the coal from the Prosperity Mine that
is contemplated under the Annual Delivery Plan to be delivered to Buyer, where
such deviation would result in any increase in overall cost to
Buyer.
ARTICLE
VII
ARTICLE
VIII
ARTICLE
XI
If the
notice is to Seller:
Xxxxx
Xxxx
Vectren
Fuels, Inc.
Xxx
Xxxxxxx Xxxxxx
Xxxxxxxxxx,
XX 00000
If the
notice is to Buyer:
Southern
Indiana Gas and Electric Company
Attn: Xxx
Xxxxxx
Xxx
Xxxxxxx Xxxxxx
Xxxxxxxxxx,
XX 00000
With a
copy to:
Xxxxxx X.
Xxxxxxxxx
Senior
Vice President, Chief Administrative Officer, General Counsel and
Secretary
Vectren
Corporation
Xxx
Xxxxxxx Xxxxxx
Xxxxxxxxxx,
XX 00000
ARTICLE
XII
13.1 Governing
Law. This Agreement and any questions concerning its validity,
construction or performance shall be governed by the laws of the State of
Indiana without reference to any choice of law provisions. Any action
which may be commenced based upon this Agreement, shall be brought only in the
Vanderburgh Superior Court or Circuit Court, in Evansville, Vanderburgh County,
Indiana.
ARTICLE
XIII
ARTICLE
XIV
ARTICLE
XV
ARTICLE
XVI
ARTICLE
XVII
ARTICLE
XVIII
ARTICLE
XIX
IN WITNESS WHEREOF, Seller and
Buyer have caused this Agreement to be signed in their respective corporate
names by their respective proper corporate officers, all as of the date first
written above.
VECTREN FUELS,
INC.
By:/s/ Xxxxx X.
Xxxx
Its: Xxxxx X. Xxxx,
President
(Printed Name and Title)
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SOUTHERN
INDIANA GAS AND
ELECTRIC
COMPANY d/b/a VECTREN
POWER SUPPLY,
INC.
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By: /s/ Xxxxxxxx
Xxxx
Its:Xxxxxxx Xxxx,
President
(Printed Name and Title)
EXHIBIT
A
COAL
QUALITY SPECIFICATIONS
The following coal quality
specifications must be met with respect to each shipment of coal prepared for
daily shipment during the Term of this Agreement. All of the
following specifications are on an “as received” basis.
Specifications
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Monthly
Weighted Average
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Calorific
value,
As
received
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Min. 10,400
BTU/lb
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11,000
BTU/lb
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<10,400
BTU/lb
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%
Moisture, as received
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Max.
17.0%
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13.0%
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>17.0%
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%
Ash, as received
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Max.
15.0%
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10.0%
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>15.0%
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SO2
(lb/mmBTU)
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Max.
7.5 lb
SO2/mmBTU
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6.00
lb/mmBTU
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>7.5
lb SO2/mmBTU
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Ash
Fusion, softening, H=W red
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Min.
2100 deg, F
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<2100
deg, F
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**
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Xxxxxxxxx
Grindability Index
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Min.
53
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53
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Nominal
Size
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Max.
2” x 0”
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2”
x 0”
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Percent
passing ¼ inch screen
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Max.
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>35%
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**
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Mineral
Analysis of Ash: Ferric Oxide, Fe203
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Max
25%
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>25%
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**
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** Seller
to provide coal analysis as requested by Buyer.
The above
coal quality characteristics must be met with respect to each shipment of coal
prepared for daily shipment against this Agreement with such shipment not to
exceed 2,000 tons.
Penalties:
Monthly
Weighted Average
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Unit
of Exceedance
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Penalty
per Unit for Exceedance
or
any portion thereof (Penalty per MMBTU)
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Moisture
%
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1%
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$.01
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Ash
%
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1%
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$.01
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SO2
lb/MMBTU
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.1
lb
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$.01
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Premiums:
Monthly
Weighted Average
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Unit
of Overachievance
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Premium
per Unit for Overachievance or any portion thereof (Premium per
MMBTU)
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Moisture
%
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1%
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$.005
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Ash
%
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1%
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$.005
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SO2
lb/MMBTU
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.1
lb
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$.005
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EXAMPLE
OF HOW PENALTIES WILL BE CALCULATED
1 –
Moisture
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2 –
Ash
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3 –
SO2
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Hypothetical
Monthly
Weighted
Average
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A
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13.4%
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10.2%
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6.10#
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Monthly
Weighted Average Per Exhibit A
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B
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13.0%
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10%
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6.00#
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Exceedance
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A-B
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.4%
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.2%
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.1#
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#
of Exceedance Units or Portion Thereof
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C
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.4
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.2
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1
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Penalty Per
Exceedance Units
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D
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.01
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.01
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.01
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Penalty
Per XXXXX
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X x
X
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.000
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.000
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.00
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Xxxxxxx
on 3,000 tons (assumes 11,000 BTUs per lb)
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$264.00
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$132.00
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$660.00
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EXAMPLE
OF WHEN & HOW PREMIUMS WILL BE
CALCULATED
1 –
Moisture
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2 –
Ash
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3 –
SO2
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Hypothetical
Monthly
Weighted
Average
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A
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12.6%
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9.8%
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5.80#
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Monthly
Weighted Average Per Exhibit A
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B
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13.0%
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10.0%
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6.00#
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Overachievance
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B-A
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.4%
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.2%
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.2#
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#
of Overachievance Units or Portion Thereof
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C
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.4
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.2
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2
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Premium
Per Overachievance Units
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D
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.005
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.005
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.005
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Premium
Per MMBTU
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C x
D
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.002
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.001
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.01
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Premium
on 3,000 tons (assumes 11,000 BTUs per lb)
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$132.00
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$66.00
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$660.00
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